Gonzales v. Safeway Stores, Inc.

• Decision Date: 24 July 1961
• Docket Number: No. 19389,19389
• Citation: 363 P.2d 667,147 Colo. 358
• Parties: Gilbert GONZALES and Nancy Gonzales, Plaintiffs in Error, v. SAFEWAY STORES, INCORPORATED, a Maryland corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 667

363 P.2d 667

147 Colo. 358

Gilbert GONZALES and Nancy Gonzales, Plaintiffs in Error, v. SAFEWAY STORES, INCORPORATED, a Maryland corporation Defendant in Error.

No. 19389.

Supreme Court of Colorado, In Department.

July 24, 1961.

Walter L. Gerash, Denver, for plaintiffs in error.

Weller, Friedrich & Hickisch, William H. Hazlitt, Denver, for defendant in error.

HALL, Chief Justice.

Plaintiffs are husband and wife; we refer to them as Gilbert and Nancy. They brought this action against Safeway Stores, Incorporated, to recover judgment for loss of earnings, pain, suffering and expenses suffered by them by reason of defendant's sale to them of food allegedly unfit for human consumption.

The evidence disclosed that on February 22, 1958, and for some time prior thereto, Gilbert was afflicted with a duodenal ulcer and was on a prescribed restricted diet, and Nancy was pregnant. Nancy, on said date, purchased groceries at one of defendant's stores, one item of which was a can of peas on the label of which was the following: 'A Safeway Guaranteed Product' Safeway Stores, Incorporated, Distributor, Head Office: Oakland, California.

Nancy, in preparing dinner of February 22, 1958, opened the can of peas, poured them into a clean sauce pan, warmed them and served them to Gilbert and herself on clean plates, each of which had on it a small piece of steak and a baked potato. Gilbert ate two spoonfuls of his peas, and when about to eat a third discovered a 'bug.' Nancy positively testified that 'It [the bug] came from the peas.' She further testified that her apartment was free of bugs or vermin.

As a result of the incident just related, Gilbert alleges that he became violently ill, suffered nausea, vomiting and diarrhea lasting three days, and suffered an exacerbation of a prior existing duodenal ulcer, causing great pain and suffering, loss of earnings and expense of doctors and medicine, for which he seeks judgment.

Nancy alleges that, as a result of the 'bug' incident, she suffered nausea and vomiting, and great pain and suffering, both physical and mental, for which she seeks judgment.

Both Gilbert and Nancy, in their separate claims, allege that the sale of said can of peas, unfit for human consumption, violated defendant's implied and express warranty.

At the conclusion of plaintiffs' case defendant moved to dismiss, urging as the principal reason therefor the fact that the plaintiffs had failed to prove that the 'bug' came from the can of peas. The court, after listening to arguments of counsel, granted defendant's motion and, in so doing, stated, among other reasons for so doing, the following:

'* * * the evidence here is as consistent with the premise on the one hand that the foreign object was in the can when it left the Safeway store as it is with another premise, namely, that through inadvertence the object got in while the food was being prepared in the family kitchen.

* * *

* * *

'I am frank to confess as I do candidly with counsel, that this is a matter undoubtedly upon which reasonable minds could differ. * * *

'* * * I am honestly convinced that this is a case of equal probabilities, and one guess is as good as the other, and there are not circumstances which would justify the jury in selecting one over the other. I am granting the motion. * * * I am dispensing with a motion for a new trial.'

It is elementary that one who sells an article for use as food for human consumption is held in law to have impliedly warranted that it is fit for the purpose for which it was sold, and for breach of that warranty proximately resulting in injury may be held to respond in damages. Ward v. Morehead City Seafood Co., 171 N.C. 33, 76 S.E. 958; Davis Adm'r v. Radford, 233 N.C. 283, 63 S.E.2d 822, 24 A.L.R. 906. See, also, Ward V. Great Atlantic & P. Tea Co., 231 Mass. 90, 120 N.E. 225, 5 A.L.R. 248; Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1269, and 142 A.L.R. 1434.

C.R.S. '53, 121-1-15, provides in subsection (2):

'Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the...